When the FBI Comes Calling…®
Identity Theft (Continued)
18 U.S.C. § 1028 (2007) (Continued)
The Punishment
The punishment will be a fine, imprisonment for not more than 15 years, or both if the defendant is convicted of one of the following:
- Producing or transferring an identification document, authentication feature, or false identification document that is or appears to be either an identification document or authentication feature issued by or under the authority of the United States; or a birth certificate, or a driver's license or personal identification card.
- Producing or transferring more than five identification documents, authentication features, or false identification documents;
- Violating section 1028(a)(5); or
- Violating section 1028(a)(7) in a way that involves the transfer, possession; or use of 1 or more means of identification if, as a result of the offense, any individual committing the offense obtains anything of value aggregating $1,000 or more during any 1-year period;
The punishment will be a fine, imprisonment for not more than 5 years, or both, if the defendant is convicted of:
- Any other production, transfer, or use of a means of identification, an identification document, authentication feature, or a false identification document; or
- Violating sections 1028(a)(3) or (7) of such subsection;
(Note: The punishment provisions here seem redundant and it seems that Congress intended the harsher penalty to go to those who benefit financially from falsifying identification; however, that is not how the statute is written.)
The punishment will be a fine, imprisonment for not more than 20 years, or both, if the defendant is convicted of:
- Violating 18 U.S.C. § 1028 to facilitate a drug trafficking crime under 18 U.S.C. § 929(a)(2);
- Violating 18 U.S.C. § 1028 in connection with a crime of violence under 18 U.S.C. § 924(c)(3); or
- Violating 18 U.S.C. § 1028 after a prior conviction under this section becomes final;
The punishment will be a fine, imprisonment for not more than 30 years, or both, if the defendant is convicted of violating:18 U.S.C. § 1028:
- to facilitate an act of domestic terrorism under 18 U.S.C. § 2331(5); or
- to facilitate an act of international terrorism under 18 U.S.C. § 2331(1).
The punishment will be a fine, imprisonment for not more than one year, or both, in any other case. 18 U.S.C. § 1028(b)(6).
A convicted defendant will also be required to forfeit to the United States any personal property used or intended to be used to commit the offense.
Any person who attempts or conspires to commit any offense under 18 U.S.C. § 1028 section shall be subject to the same penalties as those prescribed for the offense.
Case Law Interpreting Section 1028
It is irrelevant whether or not the defendant physically produced the false document. The defendant "cannot insulate himself from punishment by manipulating third parties to perform acts on his behalf that would be illegal if he performed them himself." United States v. Rashawn, 328 F.3d 160, 165 (4th Cir. 2003). In Rashawn, the court found that the defendant "aided and abetted the production of false identification documents by providing false information to the [Virginia] DMV with the specific intent that the agency would then produce a false identification document for him." Id.
In United States v. Villarreal, 253 F.3d 831, 834 (5th Cir. 2001), the defendant was convicted of violating 18 U.S.C. § 1028(a)(2) The defendant agreed to transfer false identification documents to a third party to enable the third party to travel freely between the United States and Mexico. However, the third party was a federal agent working undercover, so the transferred documents never actually traveled in foreign commerce as originally planned. The question was whether the jurisdictional requirements of section 1028(c)(3)(A)-that the prohibited conduct is in or affects interstate or foreign commerce-were satisfied. The court held that it should focus on "whether the transfer would have affected interstate or foreign commerce if [the defendant] had successfully accomplished his intended goals," and not whether the transfer actually occurred. Villarreal, at 835. There was evidence that the defendant met with an undercover officer in a Laredo, Texas motel; that he believed the undercover officer was a Mexican National in need of documents to remain in the United States; that during the meeting the two discussed the pros and cons of using various documents to cross the border between the United States, travel beyond Texas, and how to avoid the suspicions of immigration officers; and that the defendant sold a fraudulent City of Laredo Birth Registration Card to the undercover officer for $ 625. Id. Therefore, the court found there was jurisdiction.
In United States v. Kayode, 254 F.3d 204 (D.C. Cir. 2001) the defendant was charged with the possession of false identification documents with the intent to use them unlawfully. Kayode at 213. 18 U.S.C. § 1028(a)(3) makes it unlawful to possess five or more false documents. "In order to convict, the jury must find as to each identification document that the document was false, that the defendant possessed it and that the defendant intended to use that document unlawfully." Id. at 214. The defendant wanted a unanimity instruction requiring all members of the jury to agree as to which five documents satisfied all elements of the statute. However, the court stated that "[t]he statute makes relevant only the number of false identification documents intended to be used, not the identity of each particular document. The district court therefore did not err in declining to give a unanimity instruction." Id.
In United States v. Pearce, 65 F.3d 22 (4th Cir. 1995), the defendants were charged with possessing document-making implements under section 1028(a)(5) such as: "laminating materials, rub on lettering materials, laminating machine [sic], photos with backdrops, blank driver's licenses from the States of Tennessee and Connecticut, and one partially completed State of Tennessee driver's license." Pearce at 24. At issue in Pearce was whether there was a sufficient nexus between a document-making implement and interstate commerce in order to satisfy the jurisdictional requirements of section 1028(c)(3). Evidence was introduced, and the court determined, that there was a sufficient nexus. The defendants were North Carolina residents, but they possessed identification from Tennessee, New Jersey, and Connecticut, and several materials were made abroad and had traveled through interstate commerce: laminating pouches from Mexico, a laminating machine from Korea, and at least one package of rub-on letters from Blaine, Washington. Id. at 25.